Ridwana v Minister for Immigration, Citizenship and Multicultural Affairs
[2024] FedCFamC2G 679
•1 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ridwana v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 679
File number(s): ADG 360 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 1 July 2024 Catchwords: MIGRATION – Student (Temporary) (Class TU) Student (Subclass 500) visa – Refusal – Review of Administrative Appeals Tribunal (“Tribunal”) decision. Legislation: Migration Act 1958 (Cth) s 326B
Migration Regulations 1994 (Cth) sch 2 cls 500.211, 500.212, 500.214
Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 visa and Subclass 590 visa) Instrument 2019 (Cth),
Division: General Number of paragraphs: 15 Date of hearing: 1 July 2024 Place: Adelaide Counsel for the Applicants: The applicants appeared in person Solicitor for the First Respondent: The Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance save as to costs ORDERS
ADG 360 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FARICHA CHAYU RIDWANA
First Applicant
MUHAMMAD FASHHAN HAZAZI
Second Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
1 JULY 2024
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The first applicant pay the first respondent’s cost fixed in the amount of $5,000.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicants are citizens of Indonesia and the second applicant is the first applicant’s husband. On 30 March 2018, the first applicant applied for a subclass 500 student visa. On 26 June 2018, her application was refused by a delegate (Delegate) of the first respondent (Minister). The applicants then applied to the second respondent (Tribunal) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.
In this judicial review proceeding, the Court cannot re-hear the applicants’ applications for visas. Its task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside.
For the reasons which follow, the application will be dismissed.
RELEVANT LEGISLATION
Visa criteria
Clause 500 of sch.2 to the Migration Regulations 1994 (Cth) (Regulations) sets out the criteria for the grant of subclass 500 student visas, relevantly:
500.211
One of the following applies:
(a) the applicant is enrolled in a course of study;
…
500.212
The applicant is a genuine applicant for entry and stay as a student because:
(a) the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i) the applicant’s circumstances; and
(ii) the applicant’s immigration history; and
(iii) if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and
(iv) any other relevant matter; and
…
500.214
(1) The applicant will have genuine access to funds of a kind mentioned in subclause (2) and, if subclause (3) applies, subclause (3).
(2) While the applicant holds the visa, sufficient funds will be available to meet:
(a) the costs and expenses of the applicant during the applicant’s intended stay in Australia; and
(b) the costs and expenses of each member of the applicant’s family unit (if any) who will be in Australia.
(3) If required to do so by the Minister, in writing or by use of a computer program available online, at any time, the applicant gives to the Minister evidence of financial capacity that satisfies the requirements specified in an instrument under subclause (4).
(4) The Minister may, by legislative instrument, specify requirements for the purposes of subclause (3).
At all relevant times, Migration (LIN 19/198: Evidence of financial capacity – Subclass 500 visa and Subclass 590 visa) Instrument 2019 (Financial Capacity Instrument) outlined the detail that visa applicants were expected to provide in order to satisfy clause 500.214 of the Regulations, concerning whether an applicant had genuine access to sufficient funds to support their study in Australia.
Proceeding before the Tribunal
Section 362B of the Migration Act1958 (Cth) (Act) relevantly provided:
362B Failure of applicant to appear before Tribunal
Scope
(1) This section applies if the applicant:
(a) is invited under section 360 to appear before the Tribunal; but
(b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear.
Tribunal may make a decision on the review or dismiss proceedings
(1A) The Tribunal may:
(a) by written statement under section 368, make a decision on the review without taking any further action to allow or enable the applicant to appear before it; or
(b) by written statement under section 362C, dismiss the application without any further consideration of the application or information before the Tribunal.
Reinstatement of application or confirmation of dismissal
(1B) If the Tribunal dismisses the application, the applicant may, within 14 days after receiving notice of the decision under section 362C, apply to the Tribunal for reinstatement of the application.
(1C) On application for reinstatement in accordance with subsection (1B), the Tribunal must:
(a) if it considers it appropriate to do so—reinstate the application, and give such directions as it considers appropriate in the circumstances, by written statement under section 362C; or
(b) confirm the decision to dismiss the application, by written statement under section 368.
(1D) If the Tribunal reinstates the application:
(a) the application is taken never to have been dismissed; and
(b) the Tribunal must conduct (or continue to conduct) the review accordingly.
(1E) If the applicant fails to apply for reinstatement within the 14‑day period mentioned in subsection (1B), the Tribunal must confirm the decision to dismiss the application, by written statement under section 368.
(1F) If the Tribunal confirms the decision to dismiss the application, the decision under review is taken to be affirmed.
(1G) To avoid doubt, the Tribunal cannot give a decision orally under subsection (1A), (1C) or (1E).
Other measures to deal with failure of applicant to appear
(2) This section does not prevent the Tribunal from rescheduling the applicant’s appearance before it, or from delaying its decision on the review in order to enable the applicant’s appearance before it as rescheduled.
BACKGROUND
After receiving the applicants’ application for review, the Tribunal wrote to them on 7 October 2020, pursuant to s.359B of the Act, inviting them to attend a hearing on 22 October 2020, which was to be conducted by telephone. Amongst other things, that letter asked the applicants to provide the Tribunal with certain information:
(a)a copy of the first applicant’s then current confirmation of enrolment or other documents showing enrolment in a course of study;
(b)documents evidencing previous studies in Australia; and
(c)documents providing evidence of the applicants’ financial situation demonstrating an ability to fund the study in Australia.
The only relevant document falling within those requests which were supplied to the Tribunal by the applicants is a letter from Didy Arfiono, dated 3 August 2018, which advised that the signatory would:
Provide assistance to daily living expenses incurred during (Ms Ridwana and Mr Hazazi’s) stay in Australia for study purposes.
The Tribunal’s decision and reasons
The Tribunal’s reasons for affirming the Delegate’s decision were summarised in the Minister’s written submissions in the following terms, which I adopt:
11. The Tribunal commenced by identifying the decision under review, and noting that the delegate had refused the visa on the basis that the first applicant had not satisfied the financial capacity criterion. The Tribunal then detailed a number of procedural matters, namely:
11.1. the Tribunal had attempted to contact the applicant on 3 occasions shortly prior to the commencement time, and no response was received, and then again when the hearing was commenced;
11.2. the applicants did not appear before the Tribunal;
11.3. the Tribunal had advised the applicants of the hearing date and time on 7 October 2020, informed them if they failed to appear, the Tribunal may make a decision without further notice and had sent SMS reminders on 2 occasions informing of the date and time of the hearing;
11.4. being satisfied that the applicants had been properly informed of the hearing date and time, decided to proceed pursuant to s 362B of the Migration Act 1958 (Cth) to decide the application without taking any further action to enable the applicant to appear before it; and
11.5. noting the circumstances prevailing at the time (being the midst of the COVID-19 pandemic), the Tribunal had decided to proceed with hearing the matter via telephone.
12. The Tribunal outlined the financial capacity criterion requirements, and referred to LIN 19/198, which sets out the specific details of the financial capacity criterion. The Tribunal explained that a confirmation of enrolment was a critical document as it contained course costs. The Tribunal explained that the financial capacity criterion is a ‘time of decision’ criterion, and that the applicant is required to provide current information to satisfy the criterion. The Tribunal then detailed the information it provided the applicant in the invitation to the hearing regarding what information she needed to provide.
13. The Tribunal was satisfied that the applicants had had adequate notice of the type of information they should provide, and noted that the applicants had not provided any further documents or information or material to the Tribunal that was not before the delegate. The Tribunal continued:
The applicant did not provide a current COE to the Tribunal. Without a current COE or other proof of enrolment (such as a letter of confirmation from an education provider or a receipt for payments of tuition fees) the Tribunal is unable to calculate evidence of financial capacity as outlined in LIN 19/198.
14. The Tribunal was not satisfied that the first applicant met the financial capacity criterion. Where the first applicant did not satisfy the criteria, the Tribunal found the second applicant could not be granted the visa.
The Tribunal also stated at [26] of its decision that the applicants had not provided to it information regarding their financial ability to support the studies in Australia:
The applicant did not provide current proof of GAF [Genuine Access to Funds] to the Tribunal. There is no evidence before the Tribunal that the applicant satisfies LIN 19/198.
THE PROCEEDING IN THIS COURT
In the application commencing this proceeding, the applicants alleged:
I missed the call from Tribunal on the day of hearing because the mistake that I made. I have filled out the response to invitation of the hearing Form, I have scanned it and inform the new member (preferred number) to be contacted on the hearing day, and I was fully conscious that I have typed a correct email address of the AAT. But on the day of hearing I was waiting for a call – yet I did not get a call from the tribunal. And around 2pm in the afternoon I got an email from Tribunal that the decision have been refused. At that point I realised that the email of my response form was not sent successfully, I think it was because of the internet connection was not good when I tried to send that email – because at that time I was trying to send that email, I was in my friends house who just moved to a new house and she told me that the internet was not good. It was my fault I did not double check the “sent” section in my email account to make sure it is actually sent. So because of I have missed the opportunity to give my arguments on the Tribunal Hearing, I bring this case to be reviewed again in Federal Court
(as per original)
CONSIDERATION
In their submissions to the Court today, the applicants emphasised the unfairness they felt had befallen them by reason of the fact that the Tribunal had been unable to speak to them on the day their hearing was listed, and that they had been ready and waiting to present their case to the Tribunal. The circumstances of the case do seem genuinely unfortunate, but the matters which the applicants have raised today do not point to any error on the Tribunal’s part.
Moreover, it does not appear that the Tribunal’s decision was otherwise affected by any material error. The criteria found in s.362B(1) of the Act, concerning whether the Tribunal may make a decision in the absence of an applicant, were satisfied. That is to say, the Tribunal was empowered to reach a decision on the review under s.362B(1A) without taking any further action to allow the applicants to appear before it. In the circumstances, subss.362B(1B) to (1F) do not apply.
The Minister submitted that if there was any error, it was the apparent failure of the Tribunal to consider the letter of 3 July 2018, to which reference has already been made. However, I accept the Minister’s submission that any such failure was not material to the outcome of the review because, as the Financial Capacity Instrument discloses, capacity to pay course fees was an important element of the overall decision on an applicant’s overall capacity to fund the study. However, as has already been observed, the applicants did not provide a copy of the first applicant’s certificate of enrolment, which would have disclosed course costs, as required by the s.359B notice, and the letter of July 2018 said nothing about tuition expenses and so could have added nothing to that particular aspect of the consideration. Consideration of that letter would not have had any material effect on the outcome of the Tribunal’s review.
CONCLUSION
Jurisdictional error on the part of the Tribunal has not been demonstrated. Consequently, the application will be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 30 July 2024
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